Date: 20030509
Docket: IMM-2405-02
Citation: 2003 FCT 580
Ottawa, Ontario, this 9th day of May, 2003
Present: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
NEDIM OZUAK
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Nedim Ozuak (the "Applicant"), a citizen of Turkey, claimed Convention refugee status upon his arrival in Canada on July 22, 2000. He claims a well-founded fear of persecution in Turkey based on his Kurdish ethnicity, religion and membership in a particular social group, namely Fetullah Gulen followers. His application for Convention refugee status was denied by the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") in a decision dated April 23, 2002. The Applicant seeks judicial review of this decision.
BACKGROUND
[2] According to his Personal Information Form ("PIF") narrative, the Applicant was first detained, beaten and interrogated by the police in 1982 after a traditional nevroz celebration. During this detention, security forces searched the Applicant's house. Each year thereafter, he was placed under house arrest during the nevroz celebrations and was also subject to spot security checks by officials who wanted to keep a check on his religious practices.
[3] In 1990, the Applicant was arrested and held in isolation in a small room for twenty-eight days. During this time, he was repeatedly interrogated, always under blindfold, by his captors. The Applicant was beaten during these interrogations, deprived of food and water and pressured to sign a confession. At the hearing, the Applicant also claimed that he was accused of treason during these interrogations. After his release, the Applicant was removed from his job with the Air Force for religious extremism and because he had refused to cooperate with the security services investigation.
[4] In the fall of 1992, the Applicant began working in Tatarstan as a teacher at a school which received strong financial support from Fetullah Gulen. The Applicant and his family remained in Tatarstan until June 2000, when they began to fear for their safety there. Prior to coming to Canada, the Applicant and his family returned to Turkey, where the Applicant remained for three weeks to help his wife and two children get settled.
[5] The Board accepted the Applicant's Kurdish ethnicity, membership in the Fetullah Gulen community and dismissal from the Turkish Air Force in 1990 because of his religion. However, the Board was not persuaded on a balance of probabilities that the Applicant was ever arrested, detained, beaten, accused of being a traitor, or pressured to sign a confession at any time for any reason. The Board was also not persuaded that the Applicant was currently wanted by Turkish authorities.
[6] The Board also drew a number of adverse inferences regarding the credibility of the Applicant's testimony.
[7] The Board found less than a serious possibility that the Applicant would face serious harm if he were to return to Turkey. As a result, the Board found that the Applicant was not a Convention refugee.
ISSUES
[8] This application raises the following issues:
a) Did the Board ignore relevant evidence in arriving at the determination that Fetullah Gulen members are not persecuted in Turkey?
b) Did the Board ignore relevant evidence in determining that the Applicant was an ordinary member of the Fetullah Gulen community?
c) Did the Board err by drawing an adverse inference from the omission of the treason allegation from the Applicant's PIF narrative?
d) Did the Board err in ignoring the Applicant's testimony that he feared arrest, detention and torture in Turkey for having made a refugee claim?
e) Did the Board, through its conduct, deny the Applicant an opportunity to present relevant evidence?
f) Was the Board's assessment of the Applicant's credibility tainted by its application of Canadian paradigms not applicable in Turkey?
[9] For the reasons that follow, I am of the view that this application for judicial review should be dismissed.
Issue #1: Did the Board ignore relevant evidence in arriving at the determination that Fetullah Gulen members are not persecuted in Turkey?
Applicant's Submissions
[10] According to the Applicant, Fetullah Gulen members in Turkey face problems as members of the community of devout Muslims and as members of the Fetullah Gulen community. In the Applicant's submission, the Board erred by not assessing independently the evidence concerning the restrictions the Applicant would face on his freedom of worship as a devout Muslim in Turkey. The Applicant also submits that the Board erred in holding that his claim to persecution on religious grounds was not well founded.
[11] In addition, the Applicant submits that the Board was required to address his oral evidence concerning the likelihood of future arrest and persecution as a Fetullah Gulen member and to state why it preferred the single piece of documentary evidence on which it relied to the Applicant's oral testimony (Munkoh v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 863 (T.D.) (QL)); Okyere-Akosah v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 411 (C.A.) (QL)). The failure of the Board to refer to even one document in the Applicant's entire documentary package is sufficient to rebut any presumption that all of the documentary evidence was considered by the Board before it rendered its decision (Hassan v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 946 (C.A.) (QL); Bains v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 497 (T.D.) (QL)).
ANALYSIS
(i) Failure of the Board to Address Persecution as a Devout Muslim
[12] In my view, the Board did not err by focussing on the Applicant's membership in a particular devout Muslim group.
[13] The Applicant's PIF narrative and testimony at the hearing focussed on his fear of persecution as a Kurdish male and as a follower of Fetullah Gulen, and not his fear of persecution as a devout Muslim. Although counsel for the Applicant referred to the repression of conservative Muslim movements in Turkey in her written submissions to the Board, the overall focus of the Applicant's submissions and evidence was his fear of persecution based on his membership in the Fetullah Gulen community.
[14] In its decision, the Board states that it considered all of the Applicant's testimony, the written submissions of counsel for the Applicant, and all of the documentary evidence, including that submitted by the Applicant. Although the Board does not specifically refer to the documents and oral testimony related to the persecution of devout Muslims, in my view this is not a reviewable error. The mere fact that the Board did not recite certain evidence in its reasons is not fatal to its decision (Hassan, supra).
(ii) Failure of Board to Address Oral and Documentary Evidence of Persecution of Fetullah Gulen Members
[15] In my view, the Board did not commit a reviewable error in its analysis of the evidence of persecution of Fetullah Gulen members. Based on the evidence before it, the Board found that the Applicant's claim that he was arrested, detained, beaten, accused of being a traitor, pressured to sign a confession and is currently wanted by Turkish authorities was not credible. In addition, the Board specifically stated that it considered all of the evidence before it, including the testimony of the Applicant and the documentary evidence submitted by the Applicant.
[16] A review of the documentary evidence contained in the Certified Tribunal Record indicates that Fetullah Gulen himself was investigated and charged with trying to overthrow the Turkish secular government; Fetullah Gulen institutions generally commanded the support and endorsement of leaders of Turkish governments and political parties; the military discriminated and harassed Fetullah Gulen followers; and devout Muslims were targeted by the security forces. As a result, unlike in Munkoh, supra, the documentary evidence did not contradict the findings of the Board. Moreover, the failure of the Board to refer to all of the documentary evidence and oral testimony related to the persecution of Fetullah Gulen followers was not fatal to its decision (Hassan, supra).
(iii) Evidence Supported a Finding of Persecution
[17] In my view, the Board's finding that the Applicant did not have a well-founded fear of persecution based on his Fetullah Gulen membership was open to it, based on the evidence before it. In addition, I am of the view that the cases cited by the Applicant in support of his submissions on this issue are distinguishable.
[18] At the hearing, the Applicant testified that, because he was dismissed from the Air Force, he was perceived as more dangerous by security forces. He also testified that he usually attended weekly Fetullah Gulen meetings, held two meetings at his home and attended two meetings after his return to Turkey in July 2000. The Applicant was never present at a meeting in which a raid took place and he never experienced any difficulties with security forces. According to the Applicant, Fetullah Gulen followers who were lower down in the hierarchy were often taken away for a few days and questioned in a "swearing, insulting manner". Followers who were high up in the hierarchy, that is "close to Fetullah Gulen and the administrators of the foundation", were often imprisoned for longer periods of time. There was no evidence that the Applicant was close to Fetullah Gulen or the administrators of the foundation. Based on this evidence, it was not a reviewable error for the Board to find that the Applicant did not have a well-founded fear of persecution on religious grounds.
[19] The Applicant cites, among others, the decision of the Board in Re Z.Y.S., [2001] C.R.D.D. No. 208. In Z.Y.S., supra, the Board considered the difficulties that Fetullah Gulen followers faced as devout Muslims in general and as members of the Fetullah Gulen group in particular and concluded at paragraph 20 that potentially any genuine follower of Fetullah Gulen, would face more than a mere possibility of persecution should they return to Turkey." In my view, the past decisions of the Board are of little assistance to this case. A determination of whether a particular individual is a Convention refugee is fact-specific and the Board is not bound by its previous decisions. In addition, I note that the Respondent cited three Board decisions that were contrary in its findings with respect to the issue of whether Fetullah Gulen members were subject to persecution. Accordingly, I give little weight to any of the decisions of the Board.
[20] The Applicant also cited Fosu v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1813 (T.D.) (QL) and He v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1243 (T.D.) (QL), in support of his submission that his claim to persecution on religious grounds was well-founded. I am of the view that these cases are distinguishable.
[21] In Fosu, supra, unlike in the present case, the Board did not question the credibility of the Applicant. In addition, Denault J. found that the Board in that case "unduly limited the concept of religious practice, confining it to 'praying to God or studying the Bible'" (Fosu, at para. 5). There is no indication that the Board restricted the concept of religious practice in this case.
[22] In the present case, although the Applicant testified that it would be difficult for him to find work in his field because of his dismissal from the Air Force, there is no evidence that the authorities took active steps, such as those taken by the authorities in He, supra, to prevent him from obtaining this employment.
[23] Therefore, the evidence before the Board supported its conclusion that the Applicant did not have a well-founded fear of persecution in Turkey on religious grounds.
Issue #2: Did the Board ignore relevant evidence in determining that the Applicant was an ordinary member of the Fetullah Gulen community?
Applicant's Submissions
[24] The Applicant submits that the Board's finding that he was an ordinary member of the Fetullah Gulen community, and thus that the risk he faced was the same as that faced by other ordinary members, was perverse and made without regard to the evidence before it.
Analysis
[25] The documentary evidence referred to by the Applicant in support of this submission is as follows:
the boundaries of the [Fetullah Gulen] community are not clearly defined, as it attracts people with diverse political orientations and different religious attitudes... For this reason it can be difficult to identify "insiders"... However, devout followers of the community have a different status and are expected to be in unconditional "service" of the community, for example, they may be sent abroad to teach.
[26] The Board found that there was less than a serious possibility that the Applicant would be a teacher or Fetullah Gulen teacher if he were to return to Turkey. The Board also concluded that the Applicant was an ordinary Fetullah Gulen follower. In my view, this conclusion was not unreasonable.
[27] According to the testimony of the Applicant, he taught English at a Fetullah Gulen funded school and was responsible for their inventory. According to his PIF narrative, although this school received strong financial support from Fetullah Gulen, it was not a Fetullah Gulen school. As the Respondent correctly points out, the Board made no finding on this issue.
[28] In my view, the Applicant is overstating the documentary evidence on this issue. The above excerpt suggests that teachers at Fetullah Gulen schools are devout followers. It does not establish that teachers are among the most trusted members of the inner circle of the Fetullah Gulen community. Simply because the Applicant taught English and was responsible for inventory at a Fetullah Gulen funded school does not establish, on a balance of probabilities, that he was a trusted member of the inner circle of that community or close to Fetullah Gulen himself. The Applicant did not provide any other evidence to support his claim that he was more than an ordinary member of the Fetullah Gulen community. Although I may have decided otherwise, based on the evidence before it, it was open to the Board to find that the Applicant was an ordinary member of the Fetullah Gulen community.
Issue #3: Did the Board err by drawing an adverse inference from the omission of the treason allegation from the Applicant's PIF narrative?
Applicant's Submissions
[29] In the Applicant's submission, the Board's position that the treason accusation was central to his claim was not warranted by the evidence. In the Applicant's view, this allegation was a detail of the interrogation and the Board was not entitled to draw a negative inference from the omission of this detail from his PIF narrative (Ahangaran v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 772 (T.D.) (QL)). According to the Applicant, it is common for those accused of anti-state ideology to also be accused of treason in Turkey.
Analysis
[30] The Board is entitled to draw an adverse inference from the omission of a significant fact from the Applicant's PIF (Joseph v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 49 (T.D.) (QL), aff"d 2001 FCA 265, [2001] F.C.J. No. 1484 (QL); Addai-Owusu v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1034 (T.D.) (QL)).
[31] In my view, it is of particular significance that the Applicant amended his PIF at the start of the hearing to correct some minor details and to add that he was pressured to sign a confession when he was detained in 1990. However, he did not amend his PIF narrative to include the accusation that he was a traitor. An accusation of treason is a very serious matter with very serious consequences, including execution. As a result, it was open to the Board to draw an adverse inference from the omission of that accusation from the Applicant's PIF.
Issue #4: Did the Board err in ignoring the Applicant's testimony that he feared arrest, detention and torture in Turkey for having made a refugee claim?
Applicant's Submissions
[32] In the Applicant's submission, his testimony that he could face arrest, detention and torture on return to Turkey based on the mere suspicion that he had made a refugee claim was corroborated by the documentary evidence and the Board's failure to turn its mind to this evidence is a reviewable error. In Reply, the Applicant submits that the acceptance of his evidence that he had been detained was not key to accepting his evidence that he feared persecution upon return to Turkey on this ground. Rather, as indicated by the documentary evidence, acceptance that the Applicant was a Kurd who was without status in Canada is key to this submission.
Analysis
[33] Although the Applicant, in his PIF, raised the issue of the potential for "detention, interrogation and torture" if he were to return to Turkey, and although there was some documentary evidence to support the Applicant's fear, the Board made no mention of this issue in its reasons. This failure is troubling.
[34] Nevertheless, I do not think that the Board's failure to mention this is an error fatal to the decision. The Board did not accept that the Applicant had ever been detained. Further, this was not the central part of his claim and, as noted by the Respondent, it was based on non-independent and unreliable evidence (Gourenko v. Canada (Solicitor General), [1995] F.C.J. No. 682 (T.D.) (QL)). Accordingly, there is a basis for the Board to conclude that the fear of returning did not exist. While it would have been preferable for the Board to deal directly with this argument, its failure to do so is not a reviewable error.
Issue #5: Did the Board, through its conduct, deny the Applicant an opportunity to present relevant evidence?
Applicant's Submissions
[35] In the Applicant's submission, the transcript of the proceedings demonstrates that the Board intervened excessively when he was giving viva voce evidence on the treatment of devout Muslims in Turkey and its relevance to his case, thereby denying Counsel the opportunity to fully examine the Applicant and denying the Applicant the opportunity to fully present his case (Iossifov v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1318 (T.D.) (QL)).
Analysis
[36] In my view, the transcript does not support the Applicant's submissions on this issue. The testimony in question related to the crackdown on Islamic movements in Turkey in 1997, when the Applicant himself was in Tatarstan. The exchange between the Presiding Member and counsel for the Applicant on this issue indicates that, although the Presiding Member questioned the relevance of this testimony, he permitted counsel for the Applicant to proceed in this line of questioning. In fact, it was counsel for the Applicant who stopped the presentation of the testimony because she did not "wish to feel under pressure to hurry this up".
[37] This exchange does not constitute excessive intervention by the Board (Iossifov, supra). Moreover, the Applicant was not prevented from providing the Board with this evidence. The documentary evidence on this issue, which the Board initially refused to admit, was admitted into evidence when the hearing resumed on February 18, 2002. Given the general and historical nature of this evidence, it was not necessary for the Applicant to provide it through viva voce testimony. Finally, in her written submissions, counsel for the Applicant referred to the treatment of devout Muslims in Turkey. As a result, there is no evidence that the Applicant was prevented from fully presenting his case on this issue.
Issue #6: Was the Board's assessment of the Applicant's credibility tainted by its application of Canadian paradigms not applicable in Turkey?
Applicant's Submissions
[38] The Applicant submits that the Board's credibility findings are tainted by its failure to understand the cultural context of his testimony (Bains, supra). The Applicant submits that the Board failed to appreciate that the Turkish political system allows the continued existence of Fetullah Gulen institutions at the same time that it accuses its leader of instituting a plan to overthrow the secular state.
Analysis
[39] The Applicant's submission on this issue relate specifically to the Board's findings that he was evasive, equivocal and non-sensical regarding whether he was wanted by the military as a result of his dismissal from the Air Force.
[40] In his testimony, the Applicant stated that he had not committed a crime. The Applicant had to be asked a number of times whether he was wanted by the security forces when he returned to Turkey in June 2000. On my understanding, the point of the Applicant's testimony was that he was perceived as more dangerous by security forces because of his dismissal from the Air Force and, as a result, he was under surveillance by those forces. He was not wanted by the security forces because he had not committed a crime. However, he would be guilty if he participated in Fetullah Gulen related activities.
[41] Although I may have concluded otherwise, I do not think that the Board erred in drawing an adverse inference from the Applicant's testimony on the issue. I am not persuaded that the Board was applying Canadian paradigms or failed to appreciate the divergence between the military views of Fetullah Gulen and the views of the Turkish government.
CONCLUSION
[42] Despite very capable and thorough written and oral submissions by the Applicant, I am not persuaded that the Board made any error that could result in a successful review of its decision. However, I share the Applicant's concern that the Board's recent decisions related to Fetullah Gulen followers show an inconsistent interpretation of the documentary evidence. This is unfortunate, but is a matter for the Board itself, rather than this Court.
[43] Neither party proposed a question of general importance for certification. None will be certified.
ORDER
THIS COURT ORDERS that:
1. This application is dismissed.
2. There is no question for certification.
"Judith Snider"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2405-02
STYLE OF CAUSE : NEDIM OZUAK and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING : Toronto, Ontario
DATE OF HEARING : April 29, 2003
REASONS FOR ORDER : THE HONOURABLE MADAM JUSTICE SNIDER
DATED : May 9, 2003
APPEARANCES :
Ms. Catherine Bruce FOR THE APPLICANT
Mr. Tamrat Bebeyehu FOR THE RESPONDENT
SOLICITORS OF RECORD :
FOR THE APPLICANT
FOR THE RESPONDENT
FEDERAL COURT OF CANADA
Date:20030509
Docket:IMM-2405-02
BETWEEN:
NEDIM OZUAK
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER